Appellate Review: Are Some Cases Getting Decided Less on Principles of Limited Review and More Based on Expediency of Result?

Posted by Steven Vartabedian on

In my previous “career” as a justice on the California Court of Appeal, Fifth Appellate District, where I served for 21 years, I found there were times in deciding cases that the temptation arose to dispose of matters based on my instincts of the merits of a case rather than the standard of appellate review […]

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The Stretching of California’s Anti-SLAPP Statute: Are Appellate Tribunals Becoming Triers of Fact?

Posted by Steven Vartabedian on

In Tamkin v. CBS Broadcasting, Inc.(filed March 1, 2011) 2011 DJDAR 3285, CBS writer Sarah Goldfinger had offered to purchase a home from sellers represented by real estate agents Scott and Melinda Tamkin, husband and wife. Goldfinger cancelled the transactions based on the expense it would take to remedy problems revealed by a home inspection. […]

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The Risky Business of Judges and Counsel, Both Trial and Appellate, Predicting How the Supreme Court Will Decide An Undecided Issue, Such as Award for Reasonable Value of Negotiated Medical Services

Posted by Steven Vartabedian on

In my last posting, I discussed the recently published appellate court opinion in Cabrera. Part of the rationale of that opinion was that the court was following “current” California published case law. My question is how should judges and attorneys handle legal authority that may appear shaky based upon currently pending cases before higher authority? […]

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Appellate Panel Finds Collateral Source Rule Does Not Bar Reduction of Jury-Awarded Past Medical Expenses That Were Reasonable and Necessary but Negotiated Down by Plaintiff’s Private Insurance

Posted by Steven Vartabedian on

During 2010, the California Supreme Court granted review in the Court of Appeal cases of Howell v. Hamilton Meats (4th District), Yanez v. SOMA Environmental Engineering (1st District) and King v. Willmett (3rd District). In a nutshell, those three opinions can be summarized as saying that the award of an injured plaintiff’s medical provider’s full […]

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Home Construction Defect Case Prelitigation Procedure Under California Civil Code Section 914 Backfires on Homebuilder Drafting Its Own Contract Provision

Posted by Steven Vartabedian on

In 2002, hoping to reduce construction litigation and the impact on housing costs, the California Legislature enacted Civil Code sections 895-945.5 that included a nonadversarial prelitigation procedure requiring home purchasers, who believe their home may be defective, to give the builder notice of the claimed defects and an opportunity to investigate and repair the defects […]

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Legal Duty in Tort of Parents of Mentally Disabled Adult who Kills Hinges Upon Whether Parents Could Foresee Violent Harmful Acts Against Others

Posted by Ronald Henderson on

A 19 year-old “autistic” man shot and tragically killed two people before killing himself. In Smith v. Freund (filed February 2, 2011) 2011 DJDAR 1935, the family of the two victims sued the parents of the shooter primarily alleging that the defendants negligently failed to supervise their son, who lived with and was supported by […]

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Remodeling Construction Work Not Under California Statutory Exception for “Household Domestic Service” Concerning Employment Safety Requirements

Posted by Steven Vartabedian on

In Cortez v. Abich ( filed January 24, 2011) 2011 DJDAR 1257, plaintiff was seriously injured while employed by an unlicensed contractor performing roof demolition, when he fell through a seemingly intact portion of the roof of homeowner defendants’ property while he was clearing debris from the portion of the roof already demolished. Defendants moved […]

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Interpreting California Civil Code Sections 1354 & 1468: Recorded Real Estate Covenants, Conditions and Restrictions (CC&R) Trump Contract

Posted by Steven Vartabedian on

In the last posting concerning the Villa Vicenza case, I discussed how the appellate court there refused to enforce a CC&R, asserted under Civil Code section 1354. In this posting, I discuss Monterey/Santa Cruz County Building and Construction Trades Council v. Cypress Marina Heights LP (filed January 10, 2011) 2011 DJDAR 1324, in which the […]

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Alternative Dispute Resolution (ADR): California Statutes, Public Policy, and Agreement –Part II: Enforcement of Recorded Covenant to Arbitrate

Posted by Steven Vartabedian on

The second recent ADR case on the meeting of minds concerns arbitration–that is, whether an arbitration will even happen. The Court of Appeal (4th District, Division 1) in Villa Vicenza Homeowners Association v. Nobel Court Development LLC (filed January 11, 2011) 2011 DJDAR 585 found “CC&R’s are not an effective means of obtaining an agreement […]

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Alternative Dispute Resolution (ADR): California Statutes, Public Policy, and Agreement –Part I: Mediation Confidentiality

Posted by Steven Vartabedian on

Welcome to the inaugural posting of the California Appellate Lawyer Blog, presented by the Appellate Practice Group of Dowling Aaron Incorporated, Inc. This is Steve Vartabedian, recently retired from the bench, having spent 21 years on the California Court of Appeal which followed 8 years on the trial court. From time to time, I, and […]

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